FREQUENTLY ASKED QUESTIONS
6/1/15 Flood Hazard Area Control Act Rule Proposal
What are the Flood Hazard Act Rules?
The Flood Hazard Area Control Act (FHA) Rules, (N.J.A.C. 7:13) adopted on November 5, 2007, implement the New Jersey Flood Hazard Area Control Act (N.J.S.A. 58:16A-50 et seq.)
What areas are regulated by these rules?
The FHA Rules regulate certain types of construction and other development within flood hazard areas and riparian zones.
What is a flood hazard area?
The flood hazard area includes any land, and any space above that land, which lies below the flood hazard area design flood elevation (DFE), which is equal to the Federal Emergency Management Agency’s (FEMA) 100-year floodplain in coastal areas and at least one foot higher than FEMA’s floodplain in fluvial (non-coastal) areas. Structures, fill, and vegetation that are situated on land that lies below the flood hazard area design flood elevation are described as being "in" or "within" the flood hazard area.
Why regulate flood hazard areas?
Flooding presents a significant risk to the public health, safety, and welfare due to loss of life, injury, and property damage. Unless properly controlled, development within flood hazard areas obstructs and displaces floodwaters. This can increase the frequency, intensity, duration, and extent of flooding. Loss of life, injury, and property damage can also result from collapsed structures, unsecured materials and other debris carried by floodwaters. Structures built with a flood hazard area are subject to severe and repetitive flood damage, resulting in the displacement of residents and prolonged economic disruption or loss. In order to help protect public safety and to minimize potential flood damage, the FHA rules contain the most stringent Statewide standards for construction in flood hazard areas in the nation.
How do I tell if I’m in a flood hazard area?
Both the New Jersey Department of Environmental Protection (DEP) and FEMA provide mapping of many of the State’s flood hazard areas. FEMA’s effective flood mapping can be viewed at httpss://msc.fema.gov and FEMA’s advisory or proposed (preliminary) mapping along New Jersey’s coastline can be viewed at https://www.region2coastal.com. DEP’s flood mapping can be obtained by calling (609) 292-2296.
In some cases, flooding along a stream or other surface water is not depicted on DEP or FEMA mapping. In New Jersey, any stream, ditch, pond, lake, river, or other surface water that collects runoff from at least 50 acres of land possesses a flood hazard area. If you suspect an area lies within a flood hazard area, but no flood mapping is available, contact DEP for guidance on how to estimate or calculate the flood hazard area limits.
What is a riparian zone?
A riparian zone is a buffer around surface waters, like streams, lakes, and rivers. A riparian zone can be 50, 150, or 300-ft wide along both sides of a waterway, depending on how the waterway is classified. With a few exceptions, every waterway that collects runoff from at least 50 acres of land possesses a riparian zone. Also, any naturally occurring stream that has a discernible channel possesses a riparian zone, no matter how small the area that drains into the stream.
Why regulate riparian zones?
Vegetation that grows along the banks and in the riparian zone of a waterway is essential for maintaining bank stability and water quality. Disturbance of this vegetation can destabilize the banks of waterways, leading to increased erosion and sedimentation that increases the intensity and frequency of flooding. The loss of vegetation near waterways also reduces filtration of stormwater runoff and subjects surface waters to increased sun exposure. This causes water temperatures to rise and the amount of oxygen in the water to decrease. Such impacts threaten the health and habitat of fish and wildlife, disrupting the ecological balance that is necessary for life. Humans are ultimately affected by this imbalance, since clean water is essential for all life.
Do the proposed changes to the FHA rules weaken the protection against flooding and the health of our waterways?
The proposed FHA rules do not change the size or location of flood hazard areas in New Jersey, or lessen the stringent flood protections of the existing FHA rules. In some cases, DEP’s flood standards are proposed to be strengthened by adding clarity and examples to the FHA rules. The proposed FHA rules also incorporate additional flexibility and common sense to the regulatory standards for development within riparian zones. These amendments are intended to encourage redevelopment projects and projects that improve the environment, while removing confusing or burdensome standards that, in some cases, have not achieved their stated goal.
What is a Special Water Resource Protection Area (SWRPA)?
When large-scale development is proposed, New Jersey’s Stormwater Management rules (N.J.A.C. 7:8), adopted in 2004, place a 300-ft buffer around Category One waterways and certain streams that flow into Category One waterways, which are depicted on County Soil Surveys or USGS mapping. Certain types of development are prohibited within SWRPAs.
Why is DEP proposing to merge SWRPAs with 300-ft riparian zones?
Unlike SWRPAs, riparian zones exist along waterways independent of the size of a proposed development or whether the waterway is depicted on any mapping. DEP has found that having two overlapping 300-ft buffers, which have different regulatory standards and which apply to different types of waterways, is confusing and difficult to administer. In some cases, these dual buffers discourage redevelopment projects and create unnecessary obstacles to projects that would protect streams and enhance stream corridors. SWRPAs have also led to unintentional degradation of the environment by pushing development into freshwater wetlands or upland forested areas in order to avoid SWRPAs’ prohibitive standards.
DEP is therefore proposing to create a hybrid 300-ft buffer that incorporates the best elements of the existing SWRPA and 300-ft riparian zone. This will lead to greater predictability for the public and better environmental protection along Category One waterways and their tributaries.
What are acid-producing soil deposits?
These are naturally-occurring soils that lie underground within a belt roughly parallel to the New Jersey Turnpike in portions of Burlington, Camden, Gloucester, Mercer, Middlesex, Monmouth, Ocean, and Salem Counties. When these soils are excavated and exposed to oxygen, they create sulfuric acid, which can kill nearby vegetation and aquatic life. New Jersey’s Soil Conservation Districts administer stringent standards to minimize exposure of these soils and mitigate potential adverse impacts. The existing FHA rules additionally place a 150-ft riparian zone in areas where these soils exist.
Why is DEP proposing to remove regulatory standards for development in areas containing acid-producing soil deposits?
In 2007, DEP placed 150-ft riparian zones along waterways that flow through areas containing these soils and prevented new stormwater discharges in these areas. This unintentionally led to increased erosion in areas containing these soils, which caused exposure of these soils and significant environmental degradation. DEP has therefore worked with our Soil Conservation Districts to develop new standards that are more appropriately protective of the State’s waterways. Under the proposal, DEP will defer to Soil Conservation Districts in minimizing and mitigating exposure of these soils. As a result, the width of the riparian zone in areas that contain these soils will become 50 feet.
What kind of construction requires a FHA permit from DEP?
- Alteration of topography through excavation, grading or placement of fill.
- Clearing, cutting and/or removal of vegetation in a riparian zone.
- Creation of impervious surface.
- Storage of unsecured material.
- Construction, reconstruction, repair, alteration, enlargement, elevation, or removal of a structure.
- Conversion of a building into a single-family home or duplex, multi-residence building, or critical building.
If you are proposing one or more of these activities, then you need a FHA approval from DEP.
What kind of FHA permits does DEP issue?
The existing rules have three types of permits:
- Permits-by-rule, which are automatically issued by DEP for certain minor construction activities, like building a fence, pool, shed, or small home addition. No application or fee to DEP is necessary for construction that meets the requirements spelled out in a permit-by-rule. The existing FHA rule has 47 permits-by-rule and the proposed FHA rule has 63.
- General permits, which require a simplified application and minor fee to DEP for certain types of construction activities that are too large to be authorized under a permit-by-rule, and which therefore are appropriately reviewed by DEP staff before construction. Most of the 16 existing general permits are for maintenance activities, like minor stream cleaning, agricultural activities, and reconstructing a house that has been damaged by flooding. Many of the existing general permits are proposed to be converted to permits-by-rule or general permits-by-certification, and nine new general permits are being proposed.
- Individual permits, which are issued for larger construction activities. An application and fee must be submitted to DEP, who will generally visit the site before and after construction to ensure that flooding is not exacerbated and the environment is being protected.
The proposed rule also adds a fourth category of permits, called general permits-by-certification. These permits are for construction activities that are between permits-by-rule and general permits in size and scope. The proposed FHA rules add 15 of these permits. Rather than sending an application to DEP, applicants log on to DEP’s website and answer questions about the proposed construction activity. If the activity meets all of DEP’s requirements, a permit is created instantly, which can then be downloaded and printed. General permits-by-certification are being proposed for activities such as constructing one house in certain areas of the State, and reconstructing public infrastructure after a flood has occurred.